Private Lawdrafting, Intellectual Property, and Public Laws

Public
lawmakers have inadequate and misaligned incentives to engage in legal
innovation. Private lawmaking is offered as a potential solution to this
problem. However, private lawmaking faces a dilemma: In order to be effective,
the cost-reducing standard forms produced by private lawdrafters need to be
publicly enacted. However, enactment as law eliminates the intellectual
property rights that are essential to properly motivate the private lawdrafters
to produce such forms. As a result, private lawdrafters will have inadequate
and misaligned incentives to engage in legal innovation that would provide widespread
benefits. Absent some mechanism to allow the private lawdrafter a way to
appropriate the gains from his investment in cost reducing legal innovation,
the promise of private lawmaking may be minimal.